In Veilleux v. National Broadcasting Co., 206 F.3d 92 (1st Cir. 2000), the U.S. Court of Appeals for the First Circuit affirmed a jury verdict for misrepresentation against NBC for actions arising from the preparation of a "Dateline NBC" broadcast. The subject of the "Dateline" program was the trucking industry, particularly the perils to highway users caused by tired long-distance truck drivers. The program included an unflattering portrayal of a truck driver named Peter Kennedy, as he drove a tractor-trailer across the country in the employ of the Veilleux trucking company.

    Kennedy and Veilleux sued NBC, claiming they were induced to participate in the program by false promises extended by NBC. These included assurances that the broadcast would not include a group critical of the trucking industry, Parents Against Tired Truckers, and that the broadcast would portray trucking in a positive light. The plaintiffs alleged that, to their surprise and dismay, the Parents Against Tired Truckers group was indeed a part of the "Dateline" program that aired, and that Kennedy was depicted as an unsafe truck driver who regularly violated federal regulations and who used illegal drugs shortly before the program was filmed.

    The plaintiffs sued on a variety of theories including defamation, invasion of privacy, infliction of emotional distress, and misrepresentation. NBC prevailed on the defamation claims, the court holding that the material presented in the broadcast was substantially true and based on Kennedy’s actual statements. The court also rejected the privacy and emotional distress counts. The court partially sustained, however, the misrepresentation claim.

    NBC could not be held responsible for allegedly misrepresenting to the plaintiffs that they would be portrayed in a "positive" light. This promise was simply too amorphous to support a misrepresentation claim, the court reasoned, and was akin to the kind of "puffing" or "trade talk" that courts traditionally deem not actionable. The court also intimated that to hold NBC liable for such a vague promise would pose serious constitutional problems, placing too great a burden on freedom of speech.

    The court held, however, that NBC could be held liable for misrepresenting the more concrete and specific fact that Parents Against Tired Truckers would not be part of the broadcast. In sustaining this claim, the court rejected NBC’s argument that holding it liable for such an alleged misrepresentation would violate First Amendment principles. NBC argued, among other things, that opening the door to liability in such circumstances would invite plaintiffs to file suit when they were disgruntled about a program, subjecting journalists to "swearing contests" with plaintiffs over what was and was not promised in preparing a broadcast. Such claims should be permitted, NBC argued, only when there is "independent" evidence of the misrepresentation.

    But the First Circuit was not persuaded. The court followed the reasoning of Cohen v. Cowles Media Co., 501 U.S. 663 (1991), in which the U.S. Supreme Court held that the First Amendment did not bar a state cause of action arising from a breach of a reporter’s promise to maintain a source’s confidentiality. Thus the court in Veilleux reasoned that Maine’s law of misrepresentation, like the claim in Cohen, was a neutral law of "general applicability" from which the media were not exempt.

    In seeking to carefully fine-tune its ruling, the court restricted the plaintiffs’ permissible recovery to only those damages specifically resulting from the inclusion of the parents’ group in the program. The plaintiffs could not recover damages for the "general tone" of the broadcast, the court emphasized, but only those pecuniary losses linked specifically to the misrepresentation regarding the parents’ group. The case was remanded for reconsideration of the damages calculation with these limitations.